United States: US Immigration Under The Trump Administration: What We Know And What We Think We Know

SUMMARY

President Donald J. Trump recently issued an Executive Order,
followed by a proposed bill and other guidance, which would
drastically change the current immigration system. Based on these
developments, employers should be prepared for immigration hiring
changes and may want to consider applying now for immigrant status
for affected key employees.

IN DEPTH

After months of discussions on immigration issues, promises of
sweeping reform and rumors about what reform would entail,
President Donald J. Trump recently issued an Executive Order,
followed by a proposed bill and other guidance, which would
drastically change the current immigration system. The following
summary highlights some of the proposed changes, actual changes and
rumors which may or may not be based on fact.

Buy American, Hire American

The Buy American, Hire American Executive Order, signed by
President Trump on April 18, 2017, promises a commitment to protect
jobs for US workers, create higher wages and increase job
opportunities and employment rates. The Executive Order broadly
demonstrates an intent to vigorously enforce immigration laws,
taking particular aim at the H-1B visa program.

The H-1B specialty occupation visa is available to those who
hold at least a bachelor's degree and who will work for US
companies in positions which require the specific degree. Under the
current H-1B visa program, 65,000 visas are available each fiscal
year, with an additional 20,000 visas reserved for graduates of US
master's programs or higher. A "specialty occupation"
is loosely defined as one which requires at least a bachelor's
degree based on education or a combination of education plus
experience. Due to high demand for H-1B visas, over the past few
years petitions have been selected by US Citizenship &
Immigration Service (USCIS) for adjudication through a random
lottery. The number of petitions submitted has been almost three
times the number of available visas, leaving both employers and
visa candidates disappointed. While there has been criticism that
the current H-1B program may allow foreign workers to take coveted
jobs from US workers, many employers feel the H-1B program is not
generous enough to allow them to fill open positions.

While the Executive Order does not specify how the H-1B visa
program will change, rumors have abounded. There have been
discussions of limiting H-1B visas to those with both higher
education and significant experience, as well as requiring that a
position offered to an H-1B applicant must pay a minimum salary in
the area of $120,000 or more. Filing fees for H-1B visa petitions
may also be raised. Though currently there are no formal changes to
the program, practitioners are seeing increased scrutiny of pending
H-1B visa petitions. In particular, H-1B visa petitions filed for
entry-level positions and/or lower paying positions are receiving
requests for evidence, asking petitioning employers to explain how
such positions qualify as a "specialty occupation." The
definition of specialty occupation in current regulations does not
include a review of the level of position or the salary offered,
provided that the salary meets at least the "prevailing
wage" which can be determined in a number of ways. Though the
increased scrutiny is under fire by immigration law groups and some
business organizations because it is considered rule-making without
an actual rule, the current trend does provide a glimpse into what
a future H-1B visa program could require.

RAISE Act

The Reforming American Immigration for Strong Employment Act (S.
354), known as the RAISE Act, was introduced by President Trump,
Senator Tom Cotton (R-AR) and Senator David Perdue (R-GA) on August
2, 2017. The RAISE Act would make the kind of sweeping immigration
reforms that have been promised by the Trump administration. Not
only would the RAISE Act decrease the number of immigrant visa to
140,000, half the current number allowable each fiscal year, but it
would move the process to a point system. The Diversity Visa
Lottery, a true lottery offering a limited number of immigrant
visas each fiscal year to those from certain countries, would no
longer exist.

Under the present immigrant visa system, visas are allotted in
one tier based on family relationships and in another tier based on
employment offers. Employers can petition for immigrant visas on
behalf of individuals they have selected to fill a need within
their businesses. The process is rigorous and involves scrutiny and
evaluation by both the USDepartment of Labor and USCIS. Point
systems are a part of legal immigration in Canada, the UK,
Australia and New Zealand. Under the RAISE Act, individuals would
qualify for immigrant visas based on points assigned for a number
of factors including age, education, English language proficiency,
job offer, extraordinary achievement and intent to invest in the
US. The job offer awards points based on salary, using the median
household income as a measuring stick.

Notably, under the RAISE Act, family-based immigration would all
but disappear, allowing US citizens and legal permanent residents
to petition only for spouses and minor children under age 18. Under
the present system, a US citizen can petition for a parent or
sibling and US citizen parents can petition for adult children age
21 and over. These categories would not exist under the RAISE
Act.

Similar points systems were proposed in the US in 2007 and in
2013. Criticism of both systems is applicable to the RAISE Act in
that the RAISE Act does not favor family unity, limiting the rights
of US citizens by prohibiting them from applying for immediate
family members. Moreover, the RAISE Act favors highly educated and
skilled workers over less-skilled workers and disadvantages middle
aged and older people. Under the RAISE Act many much needed lesser
skilled jobs in agriculture, childcare, food and beverage, elder
care, manufacturing and construction would suffer.

Entrepreneur Rule Delayed

The Obama administration supported a new visa program known as
the International Entrepreneurs Rule (IER), commonly referred to as
the "entrepreneur visa" or "startup visa." The
IER is very popular with and supported by many Silicon Valley and
other tech innovators in the US as a step toward ensuring that the
US can continue to compete with the tech industry in China and
Europe.

Proposed more than a year ago, and based on another program
several years in the making, the goal of the IER is to facilitate
US entry for entrepreneurs who want to invest their talents in the
US. The rule would require applicants to have a track record,
funding of at least $250,000, a business plan and a substantial
interest in a business which was established less than five years
ago. The business must also be of a "public benefit" to
the US. Applicants who meet the above criteria will be issued
parole status to work in the US. Parole status avoids some of the
lengthy processing and documentation required of nonimmigrant
visas, offering a more generous option for those who do not want to
be tied to a particular company.

The IER was to have been implemented earlier this year. While
official word is that the launch has merely been delayed until
March 2018, there has also been discussion that it may be totally
eliminated.

Increased Scrutiny of Visa Petitions and Travelers upon Entry
to the US

Pending H-1B visa petitions are not the only visa petitions
which are receiving additional scrutiny by USCIS. Employers and
immigration practitioners are reporting an increase in the number
of Requests for Evidence (RFE) issued by USCIS in a wide variety of
petitions including nonimmigrant L-1 visas, as well as immigrant
visa petitions based on the multinational executive/managerial
category, extraordinary ability and other employment-based
petitions. Again, this level of scrutiny may be aimed at what the
new administration views as the direction in which immigration
should go in the future.

In a related development, on August 28, 2017, USCIS announced
that it would begin scheduling in-person interviews for certain
individuals applying for adjustment of status to permanent
residence in the US ("green card" applicants). Notably,
those who are applying under employment-based petitions will be
scheduled for interviews. With an effective date of October 1,
2017, the move to interview is a reversal of a long-standing USCIS
policy waiving interviews for most applicants filing for green
cards through employers. At this point it is unclear whether those
with pending applications will be scheduled for interviews or this
will only impact those who file on or after October 1, 2017. What
does seem clear is that without a significant increase in resources
at USCIS, the wait for interviews, and therefore the wait to
complete the green card process, will become increasingly long.

Perhaps most troubling are the reports received about travelers
being extensively questioned upon entry or reentry to the US,
including those who have been legal permanent residents for many
years. Some of the conduct by US Customs & Border Protection
(USCBP) officers has been deemed abusive, resulting in complaints
being lodged against USCBP. While traditionally visitors have been
questioned upon entry to the US to ensure an intent only to visit,
some holding valid nonimmigrant work visas are being detained upon
reentry to the US, even if they have never had a problem in the
past. There have also been reports of those with valid visas being
denied reentry to the US. In addition, some legal permanent
residents are being pressured to give up their resident status,
based on USCBP officers' opinions that the residents are
spending too much time abroad and therefore do not truly intend to
reside in the US permanently, as required. Travelers with
nonimmigrant work visas are cautioned to come prepared with a
current job letter or contact information for their employers in
case questions are raised. Legal permanent residents should be
prepared to answer questions about their intent to remain in the
US. While questioning by a USCBP officer can be intimidating,
travelers do have a right to speak with a supervisor if an officer
appears to be acting inappropriately.

Deferred Action for Childhood Arrival Program Terminated

On September 5, 2017, the Trump Administration announced that
the Deferred Action for Childhood Arrival Program (DACA) would be
terminated in six (6) months. Created by an Executive Order in
2012, DACA has enabled approximately 800,000 otherwise undocumented
individuals who were brought to the US as children to be protected
from deportation and obtain work authorization. At the present time
there is no indication of how current DACA recipients will be
handled once the program has been terminated, raising fears of mass
deportations. Many employers and employment groups have expressed
disappointment about this new development based on their employment
of DACA individuals. In particular, the health care and hospitality
industries expect to be widely impacted by the DACA termination.
Businesses are now in a position of considering how to fill
positions once their DACA employees are no longer employable.

Will Visa Status under the NAFTA Survive?

While the future of the North American Free Trade Agreement
(NAFTA) clearly has a great impact on a number of areas, there is a
concern about the future of visa categories specifically created by
the NAFTA. Citizens of Canada and Mexico may be eligible for
nonimmigrant NAFTA Professional (TN) status to work in the US if
they will be filling certain positions listed on the NAFTA. These
positions include engineers, accountants, nurses, scientists and
many other job categories. A TN applicant must have a specific job
offer in a listed job category and must have the qualifications
outlined in the NAFTA for the particular job. TN status has been a
good option for many employers and employees because it can be done
very quickly and efficiently at a much lower cost than many of the
other visa categories. If NAFTA no longer exists, the TN category
will clearly disappear, however there is some thought that even if
the NAFTA is revamped in some way, the TN visa may no longer be an
option.

Conclusion

Though there is no certain path to reforming US immigration, it
is safe to assume that changes will be made in both current law and
policy. Employers should be prepared for changes in hiring and may
want to consider applying for immigrant status for key employees at
this time. Travelers also are cautioned to be prepared to answer
questions upon entry to the US.

The US Department of State has released its October 2017 Visa Bulletin setting out per-country priority date cutoffs that regulate immigrant visa availability and the flow of status adjustments and consular immigrant...

Delays and increased processing times can be expected for employer-sponsored immigrants seeking green cards, based on a recently announced change by the US Citizenship and Immigration Services agency (USCIS).

Wherever you fall on the political spectrum, there is no denying that the first 200 days of President Trump's administration have been an interesting time for employers impacted by immigration regulations.

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